A daily Bulletin listing our choice of Decisions of Superior Courts of Australia.

Insurance, Banking, Construction & Government

Monday, 8 June 2015

Executive Summary (One Minute Read)
Munsie v Dowling (No 4) (NSWSC) - pleadings - defamation - amended defence struck out - leave to replead
Nominal Defendant v Mokbel (NSWCA) - motor vehicle accident - evidence - Nominal Defendant not liable - appeal allowed
Mules v Ferguson (QCA) - medical negligence - patient suffered injuries from meningitis - doctor liable - patient awarded damages of $6.7 million
A, DC v Prince Alfred College Incorporated (SASC) - negligence - claim against college for sexual abuse by housemaster - claim dismissed
Fisher v Tony Innaimo Transport Pty Ltd (ACTSC) - workers compensation - worker did not have single state or territory connection - matter remitted
Carlyon v Town & Country Pubs No. 2 Pty Ltd T/A Queens Hotel Gladstone (QSC) - negligence - hotel patron injured in fall downstairs when removed from hotel - hotel owners not liable
Summaries With Link (Five Minute Read)
Munsie v Dowling (No 4) [2015] NSWSC 37
Supreme Court of New South Wales
Hoeben CJ at CL
Pleadings - defamation - action arising out of publication of material on website - plaintiffs sought that amended defence be struck out on basis no reasonable defence disclosed or it had tendency to cause prejudice, embarrassment or delay - defendant not legally represented - scandalous material - non-compliance with Uniform Civil Procedure Rules 2005 (NSW) - held: imputations raised in statement of claim prima facie defamatory of plaintiffs - allowance made for fact that defendant not legally qualified - defendant failed to establish basis for amended defence to be allowed to remain in present form - amended defence struck out with leave to replead.
[From Benchmark 12 February 2015]
Nominal Defendant v Mokbel [2015] NSWCA 3
Court of Appeal of New South Wales
Basten & Ward JJA; Adamson J
Motor vehicle accident - respondent injured when lost control of car and collided with street pole - respondent sued Nominal Defendant on basis there was unidentified vehicle and that negligent driving of vehicle had caused him to lose control of car - trial judge found in favour of respondent and assessed contributory negligence at 30% - Nominal Defendant challenged finding on liability - both parties challenged decision on contributory negligence - objective evidence - descriptive evidence - held: Court should not have been satisfied an unidentified vehicle cut across respondent’s vehicle without warning, forcing him to take evasive action - appeal on liability upheld - evidence did not establish negligence on part of any other driver so no question of contributory negligence arose - cross-appeal dismissed.
Nominal Defendant
[From Benchmark 10 February 2015]
Mules v Ferguson [2015] QCA 5
Court of Appeal of Queensland
M McMurdo P; Applegarth & Boddice JJ
Medical negligence - appellant suffered injuries and disabilities after contracting meningitis - appellant sued doctor for failure to undertake proper examination or make proper enquires as to symptoms - primary judge assessed damages at $6.7 million but dismissed appellant’s claim - appellant contended judge erred in finding doctor’s breach of care did not cause her injuries and in finding doctor had a defence under s22 Civil Liability Act 2003 (Qld) - held (by majority): trial judge’s findings that respondent breached duty of care open on evidence - trial judge’s findings as to likely outcome of consultations had respondent not breached duty against weight of evidence - no evidence sufficient to satisfy respondent’s onus in respect of s22 - appeal allowed - judgment for appellant for $6.7 million.
[From Benchmark 9 February 2015]
Carlyon v Town & Country Pubs No. 2 Pty Ltd T/A Queens Hotel Gladstone [2015] QSC 13
Supreme Court of Queensland
A Lyons J
Negligence - plaintiff injured as result of a fall down front steps of hotel as he was being evicted by security staff - plaintiff sued hotel owners on basis injuries were result of assaults and negligence of the security staff during eviction, and failure of defendants to provide a safe system of security - s 92(1)(a) Evidence Act 1977 (Qld) - Liability Regulation 2003 (Qld) (Reprint 1A) - ss165(1) 165(2) & 165(3) Liquor Act 1992 (Qld) - held: Court not satisfied failures, which may or may not have existed in hotel’s security policies in relation to use of restraints, caused or contributed to fall - most likely cause of fall was plaintiff’s resistance to being removed - claim dismissed.
[From Benchmark 6 February 2015]
A, DC v Prince Alfred College Incorporated [2015] SASC 12
Supreme Court of South Australia
Vanstone J
Negligence - limitations - plaintiff claimed that in 1962 housemaster sexually assaulted him at school and elsewhere “in the course of his employment” at college - plaintiff claimed college liable for injury, loss and damage, either because it owed him a non-delegable duty of care, or because it breached its duty of care in employing housemaster and failing to have adequate systems in place to protect him, or because it was vicariously liable for housemaster’s criminal conduct - held: plaintiff failed to prove college was negligent - Court unable to make finding of negligence in absence of evidence from witnesses who had direct responsibility for boarders and knowledge of relevant circumstances and events - Court unable to find that what college did to address situation once discovered was other than in accordance with the prevailing standards of the time - it was not proved that the sexual abuse occurred within the course of housemaker’s employment so as to make the college vicariously liable - Court would have declined to extend time to institute proceedings because of actual prejudice suffered by college from lapse of time since relevant events - claim dismissed.
[From Benchmark 6 February 2015]
Fisher v Tony Innaimo Transport Pty Ltd [2015] ACTSC 1
Supreme Court of the Australian Capital Territory
Burns J
Workers compensation - Magistrate determined that appellant worker’s territory or state of connection for purposes of worker’s compensation was NSW - worker contended that the state or territory of connection was the ACT - workers compensation entitlements in NSW were less generous than in the ACT - held: Magistrate erred in determining that there was a single territory or state, being NSW, where worker was usually based for purposes of employment - worker worked out of two depots, one in ACT, the other in NSW - neither could be said to be place where worker was usually based for the purposes of employment - matter remitted to further consider test under s36B Workers Compensation Act 1951 (ACT).
[From Benchmark 6 February 2015]

Song of the Witches: “Double, double toil and trouble”
By William Shakespeare

(from Macbeth)

Double, double toil and trouble;
Fire burn and caldron bubble.
Fillet of a fenny snake,
In the caldron boil and bake;
Eye of newt and toe of frog,
Wool of bat and tongue of dog,
Adder's fork and blind-worm's sting,
Lizard's leg and howlet's wing,
For a charm of powerful trouble,
Like a hell-broth boil and bubble.

Double, double toil and trouble;
Fire burn and caldron bubble.
Cool it with a baboon's blood,
Then the charm is firm and good.

William Shakespeare